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May 24, 1993



The opinion of the court was delivered by: I. LEO GLASSER

GLASSER, United States District Judge.

 Plaintiff Peter O'Brien was injured while working as a Ferry Terminal Supervisor at the St. George Terminal of the Staten Island Ferry in Staten Island, New York. He commenced this personal injury action under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. Defendant City of New York (the "City") moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief. Because the parties have submitted matters outside the pleadings, the City's motion is converted to a Rule 56 motion for summary judgment pursuant to Fed. R. Civ. P. 12(b), and is granted for the following reasons.


 The parties do not dispute any of the facts alleged in the complaint. Defendant City operates the Staten Island Ferry, a fleet of ferry boats, to transport passengers between the boroughs of Staten Island and Manhattan. In Staten Island, the ferries dock at the St. George Terminal. Plaintiff Peter O'Brien ("O'Brien") was employed by the City to perform various duties as a supervisor at that terminal. On February 8, 1984, O'Brien went aboard a ferry that was docked to break up a fight between a male passenger and a female passenger. In order to protect the female passenger, he took her to his office in the terminal building. A few minutes later, the male passenger sought to enter the office, but O'Brien barred his way. The male passenger then struck O'Brien, causing him to trip over a ledge and hit a brick wall near the office entrance. O'Brien injured his neck and ankle in that fall.

 On May 6, 1985, O'Brien and his wife, Nancy O'Brien, commenced a personal injury action in state court to recover damages under the Jones Act, 46 U.S.C. App. § 688. *fn1" Exh. A to Def.'s Notice of Mot. Before the case was tried to a jury, the parties consented to have the court conduct an evidentiary hearing to determine whether O'Brien was a seaman for purposes of the Jones Act. At the conclusion of the hearing, the court found that O'Brien was not a Jones Act seaman and dismissed the action. Exhs. B and C to id. The Appellate Division, Second Department, affirmed the lower court decision on April 20, 1992, Exh. D to id., and both the Second Department and the Court of Appeals denied leave to appeal on July 1, 1992, and December 22, 1992, respectively. Exh. E to id.

 Approximately one month later, on January 26, 1993, plaintiffs commenced this action in federal court under the LHWCA, 33 U.S.C. § 905(b). The complaint filed in this action is nearly identical to the original state court complaint. Defendant City moves for summary judgment of dismissal. For the following reasons, that motion is granted.


 Federal Rule Civil Procedure 56 provides that summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To attempt to review the voluminous treatise, law review and judicial literature on summary judgment would be as foolhardy as it would be superfluous. Suffice it to be cognizant of the observation made by the Court in Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986):

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action. . . . Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

 In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) the Court said:

When the moving party as carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial.". . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial."

 In Steven A. Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183 (1987), the author, commenting upon that statement in Matsushita, writes:

This language makes clear that summary judgment acts in a parallel fashion to the trial motion for directed verdict, allowing a grant if the nonmovant plaintiff fails on substantive proof even before trial. This strengthens the perception that summary judgment allows weak factual claims to be weeded out, not just facts that have no legal ...

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